Greetings and welcome back to your weekly case law update, last week we looked at discrimination and harassment on the grounds of race and religion. This week we are once again looking at discrimination and harassment on the grounds of race although this time our case relates to harassment committed by a third party. It does pose the question about whether the deluge in such cases is a sign of the times?

Mr Bessong, the Claimant, worked as a mental health nurse for Pennine NHS Trust, the Respondent. The Claimant was a black person of African origin. The Respondent operated a secure residential unit for males sectioned under the Mental Health Act.

The Claimant was the victim of a racial assault by one of the Respondent’s patients. The Claimant was punched several times and the patient used a pen as an improvised shiv (homemade knife). The patient was heard shouting racial abuse which included, “you f***ing black I am going to stab you now.”

The Claimant suffered facial injuries and received hospital treatment. The Claimant also reported the incident to the police. The Respondent filed an incident report about the assault but no mention was made of the racist comments.

The patient responsible for the assault had a history of racially abusive behaviour. The night before the assault the patient had been involved in an incident where he had said, “Why is it all black people working in the ward?”

The Claimant commenced Employment Tribunal Claims for direct and indirect race discrimination together with harassment on the grounds of race. The direct claim focused on the Respondent’s failure to mitigate the threat posed by the patient in question. The indirect claim centred around the Respondent failing to ensure all racist incidents were reported on the incident form.

The harassment claim was twofold. Firstly, that failing to protect the Claimant was a form of harassment. Secondly, failing to report the incident was a form of harassment. The ET allowed the indirect discrimination claim. It held that the Respondent did not enforce its policy that staff should report every racist incident. Likewise many of the Respondent’s black staff felt the reporting was not followed up and was futile.

However, the claims for harassment were rejected. The ET held whilst the incident would create a degrading atmosphere, the conduct of inaction on racist abuse was not related to race but due to the Respondent’s own bureaucratic failings. The claim for direct discrimination also failed for similar reasons.

The Claimant appealed citing the EU race directive which stated that harassment merely needed to take place not that it needed to relate to race. The EAT rejected the appeal. The EAT held the ET had been right to find that the Respondent’s inaction was unrelated to race and on proper construction of the EU directive the conduct must be related to race.

The takeaway point:

In this case no, an employer’s failure to protect employees from third party harassment does not amount to an act of harassment itself because the inaction was not related to race. However, the conduct did amount to indirect race discrimination, so the employer has not completely got off the hook in terms of financial liability.

The ET may have also taken a narrow approach here. It is unclear how the conclusion was reached that the inaction on race issues was not related to race. It could be argued that, if the management structure was all white then their failure to act on such an issue was due to them not understanding how such incidents impact black staff.

Finally the ET and EAT made findings of fact in this case that the Respondent’s inaction allowed racist behaviour of patients to go unchecked. Staff were given inadequate training, there were no notices about how abusive behaviour would not be tolerated and there was little in the way of consequence to patients who were racist.

This is a damming finding of fact against a public body and is yet another example of why settlement is sometimes a good strategic option. This is not some lesser-reported first tier tribunal, it has been picked up and covered by many employment law news outlets – including ourselves – meaning thousands of people will now know of Pennine NHS Trust’s inertia towards racist patients.